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What is a Peremptory Challenge and who really cares anyway?

Trial attorneys, defendants, prosecutors and sometimes judges care about these challenges because a single juror can sometimes make or break a criminal case. There’s a lot of theories on jury selection, it’s a big business in of itself with jury experts, psychologists and others all trying to cash in.


From Black’s: One of a party’s limited number of challenges that need not be supported by any reason, although a party may not use such a challenge in a way that discriminates on the basis of race, ethnicity, or gender.

Striking a Juror in New York

So you don’t like Potential Juror Number 4’s beady little eyes or the apparent disdain on the face of Potential Juror Number 2 and you want to strike them off the panel? Well, go ahead. In New York, a misdemeanor charge will allow you to strike 3 persons from the jury pool and a felony charge can allow a substantially higher number depending on the level of the highest charge. A class A felony brings 20 strikes, where a class B or C allows 15 and any other felony charge will give 10. You cannot combine these strikes as they are measured only by the highest charge, so if you are charged with A, B, C and other felonies, you’ll only get 20 strikes. Further if you are being tried jointly with other defendants, you won’t have the ability to combine strikes either, again the number will be determined by the highest charge on all defendants. The caveat with multiple defendants is that there must be a majority of defense attorneys joining in the request to strike.  If there are too many disagreements between defense attorneys representing multiple defendants, the defense attorney should put in a motion to sever, so that each defendant can have the type of defense they are entitled to under New York law and the United States’ Constitution.

United States Supreme Court

In 1986, the United States Supreme Court decided that excluding jurors on a prima facie showing of a discriminatory basis would require an acceptable neutral explanation or risk the strikes being reversed by the trial court. So this is an objection that has to be brought to the judge’s attention immediately! But this doesn’t just apply to striking a juror because they are of a minority status, a defense attorney should object and bring to the judge’s attention if they have an African-American or Hispanic defendant and the prosecutor attempts to build an all White jury by improperly striking African-American or Hispanic jurors, the same goes for building an all male or female jury or a jury on any discriminatory basis.


The most famous trial in history of course, is the trial of Socrates. Socrates was tried in 399 B.C. for impiety and corrupting the youth. Socrates enjoyed a jury of 500 Athenians and was ultimately found guilty and sentenced to death. I assume since the death penalty was on the table for these crimes, the highest charge would have been akin to a New York Class A Felony which gives rise to 20 strikes. Since the Athenian jury of 500 was so much larger than a New York Jury of 12, the equivalent mathematical requirement for the 20 New York strikes would have been an astronomical Athenian 833 strikes. Considering Socrates’ talents as a teacher, philosopher and general antagonist, 833 strikes would have probably given him enough latitude to weed out enough jurors to turn his conviction. As we all know, Socrates was a moral man and less concerned about his own demise rather than what he considered a flaw in the legal system or in the fabric of society. Socrates accepted the jury’s judgment and drank the hemlock on his own accord, even though he had the means and opportunity to escape.

With these ideas, some believe that anything is possible with the right jury and while you’ll see some of this attitude in criminal jury selection, it really seems to shine through on the civil side. Yet other attorneys feel as though jury selection is usually a waste of time as except in the rare case, you never know how a person will react or judge a situation. People are prone to make out of the ordinary or rash decisions based on evidence presented or prior life experiences, some might even be influenced by recent life changing events, so you really never know if a person will take the duty of being a juror seriously or what type of personal values are really driving those decisions.

There are outlandish and ridiculous movies about runaway juries, undue influence on jury members or some other inflated Hollywood production, but as surreal as it may be, an extraordinary set of circumstances sometimes can and does arise.

If you want to learn more about Michael A. Huerta, Attorney and Counselor at Law, or Huerta PLLC, a New York Law Firm, visit http://HuertaPLLC.com